from the Iowa District Court for Allamakee County, Barry S.
Mueller, Magistrate (trial), and Stephanie C. Rattenborg,
District Associate Judge (appeal).
towing company appeals from a judgment entered against it in
a replevin action. AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED WITH DIRECTIONS.
Patrick A. Ritter of Elwood, O'Donohoe, Braun, &
White, LLP, West Union, for appellant.
Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish,
P.L.C., Decorah, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
unwanted tow of a thirteen-year-old van set off a bizarre
series of events that spawned a lawsuit, an appeal to the
district court, a grant of discretionary review by our
supreme court, and finally, transfer to this court. Defendant
towing company Danny Macs appeals from a judgment entered against
it in a replevin action brought by the owner of the van. We
affirm in part, reverse in part, and remand with directions.
Background Facts and Proceedings.
as we can glean from conflicting testimony, the salient facts
are as follows. During the early morning hours of June 23,
2013, an unprecedented flood inundated Waukon. Plaintiff
Bianca Pulliam was living in a downtown apartment above
The Standard newspaper offices at the time. She was
awakened when a neighbor knocked on her door and told her to
get up because vehicles were being towed from the
building's parking lot. Pulliam's van, a 2000 Pontiac
Montana purchased for $1500 a few months earlier, was parked
in the lot behind the building in a space authorized for
parking by tenants of the building.
went down to investigate. Her van had not yet been towed.
When she attempted to get in the van to move it she was told
by a woman standing in front of the van,  "No, we
can't allow you to start-allow you to start the vehicle
up." Pulliam said she would move the van, but she was
told, "No we can't allow you to start 'em up due
to the water will get in your engine. But we're moving
them all out to the main street for cleanup, until we clean
up the parking lot." She was told that she could pick up
the van on the main street. Pulliam's van was then towed.
Pulliam went back to her apartment to change her clothes.
About an hour later she went to the main street in search of
her van. None of the vehicles from the building's parking
lot were there. She called the police, and not knowing the
identity of the company that towed her van, she called
several towing companies and was eventually informed her van
was at Wilken Auto Salvage (Wilken's).
Burington, owner of Danny Macs, testified he had been called
by the Allamakee County Sheriff's Office dispatch to
remove vehicles from the back parking lot behind The
Standard and downtown businesses because everything had
been flooded there. "[T]hey wanted [all the vehicles]
out of downtown for cleanup . . . they didn't want them
sittin' downtown . . . creatin' any type of health
hazard." Danny Macs took all the towed vehicles to a lot
it was renting from Wilken's. Burington stated all the
vehicles towed were charged $75, "and the first week
they sat there we weren't going to charge any storage due
to the circumstances."
to Pulliam, she went to the salvage yard to retrieve her van
and was told she had to pay $175 for the tow. Pulliam refused
to pay the charge, and in any event, she did not have the
money to pay it. She called the police to see if she could
get the van back without paying the tow charge. That met with
no success. A few weeks later, after she had raised the money
to pay the tow charge, she was told the cost to retrieve her
van had gone up because accrued storage fees had been tacked
Pulliam attempted to contact Waukon's mayor with no
success. Eventually, a frustrated Pulliam went back to the
salvage yard and saw that her van was outside of the
yard's gate. Engaging in an act of self-help, she got in
the van, started it up, and drove off. Unbeknownst to
Pulliam, Danny Macs then reported the van as stolen. Shortly
thereafter, she took the van to a Prairie du Chien automotive
repair shop to have the flood damage repaired. The van was
muddy and water had been in it. The battery was replaced, the
gas tank was dropped, and the windshield wiper motors were
replaced because of water damage. Pulliam did not have the
money to pay for the $1600 in repairs, so the van sat at the
shop until the end of 2013.
Pulliam paid for the repairs and drove the van to Chicago for
a weekend and then drove back Calmar, Iowa, where she was
then living. After being pulled over by police, she was told
that the van had been reported stolen. She exclaimed,
"How? I'm the owner of the vehicle." She was
told Danny Macs had reported it stolen. Up to this point, she
had not known that it was Danny Macs that had towed her van
to Wilken's. Burington testified "Allamakee
Sheriff's Office dispatch called us and said Calmar
[Police Department] had a van that was in the ditch and they
got it out and they had it pulled over and it was the van-it
was [Pulliam]'s van that he had over there."
Burington was told that Pulliam was driving the van.
Burington went to Calmar and picked up the van and brought it
back to Waukon. The van then sat in a storage lot for the
next year. By this time, Pulliam had moved back to Waukon.
sequence of the following events is as muddy as the Waukon
flood waters but not critical to our analysis. According to
Burington, about a year after the van was towed from Calmar,
he received a phone call from Pulliam asking if
we had possession of her van and we told her we did but now
she'd have, you know, extra towing costs due to us going
over to Calmar and bringing it back. And then with the prior $75
charge from before, you know, that would all have to be paid
and-and then at that time, you know, she didn't have the
money for anything and she didn't feel it was right that
it got towed in the first place and that's kind of where
it got left off then.
January 2015, Danny Macs sent a letter to Pulliam informing
her that her balance was "seriously delinquent." In
lieu of a cash payment, Danny Macs offered to accept title to
the van as a settlement on the balance owed. A February 4,
2015, letter to Pulliam from Danny Macs stated: "Per the
phone conversation you had stated to dispose of the vehicle
in lieu of the tow bill and storage fees from June
2013." The letter requested Pulliam to either
sign the vehicle's title over or sign a form giving Danny
Macs permission to dispose of the vehicle.
point, a Waukon police office came to Pulliam's home and
told her that Danny Macs "was giving them trouble about
the vehicle been sittin' there so long and they want to
get rid of it, " and "[t]here was a paper for [her]
to sign [her] title over for [Danny Macs] to dispose of the
vehicle." Pulliam said she would do no such thing
because the van should not have been towed in the first
place. The officer told her, "Well, I'm the one
[who] authorized for the vehicles to be moved to the main
street for cleanup." After Pulliam told the officer
Wilken's had tried to charge her to get the van back, the
officer responded, "They tried to charge you to get your
vehicle back?" Pulliam said, "Yes, " and the
officer told her to hold on and give him "about an hour
and [he'd] be back." When he came back, the officer
told Pulliam the towing company was not happy, but she could
have her van back if she just paid the tow charge. He
suggested that before paying the charge, she should see if
the van would start because it had been sitting for so long.
called Wilken's and said she wanted to come out to see if
the van would run and to "try to pay [her]
vehicle." She was told no one was there at the time to
take her to her van, and she was asked to call back on
Thursday or Friday. She called back on Thursday and was told
Wilken's no longer had the van because Danny Macs had
picked it up. Pulliam called Danny Macs and was told the
van was on Burington's property near his house. Pulliam
went to the Burington home and spoke with Burington. He told
her, "Well, I had your vehicle here two days ago. When I
returned home, I seen tire tracks in the mud and the vehicle
is gone. Someone stole it." At the trial Burington was
asked if he knew where the van was. He said:
Wish I did 'cause it-We had it up until the last time I
talked to [Pulliam] and then-then she had said that
Wilken's had given our information to her-to her as to
where the vehicle was. And then it was maybe three, maybe